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George Breitman

U.S. Army Courts-Martial System Flayed in Sweeping Denunciation

(4 May 1946)


From The Militant, Vol. X No. 18, 4 May 1946, pp. 1 & 7.
Transcribed & marked up by Einde O’ Callaghan for the Encyclopaedia of Trotskyism On-Line (ETOL).


A sweeping indictment of American “military justice” in World War II was made last week in a report by a sub-committee of the House Military Affairs Committee, the full contents of which have not yet been made public as a result of pressure from the War Department.

The report, drawn up after a six-month investigation, in effect charged the Army with conducting courts-martial in order to maintain the officers’ concept of “discipline” rather than to dispense justice:

“The court-martial system is regarded by most professional officers as a means of enforcing discipline ... (but) discipline must not be named as a cloak to cover arbitrariness and injustice.”

(Recently Major General Thomas H. Green, Judge Advocate General, in a defense of the court-martial system before the American Bar Association in Cincinnati, declared: “The court-martial system is, of course, primarily designed to help our armies win our wars. The sanctions of military justice constitute an instrument of command. They form the strong right arm of the military commander in the maintenance of order and discipline within his ranks.”)
 

Compliant Courts

“There is a widespread belief among intelligent soldiers that not so much a qualified as a weak and compliant court has been the objective,” the House committee report continued. A weak and compliant court is naturally more apt to obey the wishes of the senior officer who appointed its members and who can make life miserable for them after the trial.

“There have been many excessive sentences ... the most tragic, of course, are the death sentences not commuted (142 in number), about which it is so difficult to obtain information ... Army courts in Europe adjudged two sentences of life imprisonment for A.W.O.L. Hundreds, probably thousands of bewildered boys with no really disloyal intentions were sentenced to five years’ imprisonment for absence without leave ... It is the opinion of competent observers that Army sentences generally err on the side of severity.”

In addition, it declared, the War Department does not provide “adequate review of their findings” since the record shows that sentences imposed were approved by a 99-to-one ratio by the Judge Advocate General’s office.

As in all other spheres of Army life, officers get different and more favorable treatment than enlisted men facing the same charges. In Manila the Army issued orders to arrest all speed law violators. Enlisted men were fined on the first offense, it said, but officers were not punished until the third offense – and then got off with a reprimand in place of a fine.

”An enlisted man has the right, to bring charges against a commissioned officer,” the report observed. “This is largely a paper provision. An officer of long experience has said that when it did happen the enlisted man always found himself court-martialed or transferred.”

Officers Select Court

But, as every soldier knows, an officer not only can bring charges against an enlisted man, but he can often also select the members of the court-martial. Of course his testimony bears ten times more weight with the court than the enlisted man’s.

In addition to its general observations, the sub-committee presented 16 specific recommendations. But the adoption of these recommendations – which is not likely, since the War Department is preparing its own list of proposed “reforms” – will do little to change the situation fundamentally.

The sub-committee calls for amendments to some of the present Articles of War, when the need is for the complete abolition of this barbarous military code and the adoption of a code which will – recognize the democratic rights of members of the armed forces. It asks for an independent tribunal that will more thoroughly review the harshest courts-martial sentences, but is willing to leave the courts-martial themselves in the hands of the officer caste.

It seeks to give enlisted men on trial the right to have one- third of the court composed of enlisted men. This would be a change from the present system where only officers sit on juries, but would still be a far cry from the right of trial by a jury of one’s peers, which enlisted men asked for again and again in their letters to army newspapers during the recent war.
 

Recommendations Useless

The value of the sub-committee’s report lies in what it reports, and not in what it recommends. After all, Congress does not come into this matter with clean hands. After the first world war a similar report was made by a Congressional committee, and nothing came of it but a few face-saving amendments to the Articles of War. And Congress has the right to replace the Articles of War with a whole new code. Basically, as the record shows, all Congress wants to do is prevent scandals, not interfere with the power of the officer caste.

In spite of this. Undersecretary of War Royall challenged the report as “grossly unfair both to the Army and the system of military justice.” To defend the War Department he pointed out it had appointed an advisory board on military justice, with its members selected by the American Bar Association, to review the entire court-martial procedure. (This was done after the House sub-committee had begun its investigation. Furthermore, American Bar Association members helped the War Department whitewash the Articles of War after World War I.) Royall also called attention to the fact that a clemency board had been set up last summer “to review every individual general court-martial case.”

But as the House report said: “Neither clemency nor pardon are remedies for miscarriages of justice.”


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